Brief for the United States in Opposition — In re Estate of Hurst

“~“

ee

\

INDEX

Opinions below

Jurisdiction —

Question presented.

Statement... €

Argument

Conclusion ees

Appendix

CTPATIONS

Cases:

Freeman v. United States, 167 Fo Supp. 541

Matson vo Cnited States, 171 EF. Supp. 283

Moore v. United States, SS BL Supp. 399

Nunnally vo United States, 239 F.2d A21

Pope v. United States, 173k. Suyyy. 36

Richards veo Washi lon Terminal © bere per dey

233 U.S. HG. -

Uniicd States v. Caushy, 328 Uos, 256

Cnited Stats vi 2a Acres of Lond, 126 ¥.

Supp. Bde

United States vo Willow River Co.. 324 US.

seen 62 a

@&

Gn the Supreme Court of the United States

OcTOBER TERM, 1962

No. 568

WituiaM J. Batrren anp Katit M. Barren, His Wire,

EY AL., PETITIONERS

v.

f

4

UNITED STATES OF AMERICA

a in

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CO"RT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

oe

OPINIONS BELOW

The opinions of the court of appeals (Pet. App.

27-37) are reported at 306 F. 2d 580. Its opinion at

an earlier phase of the case (Pet. App. 19-20) is

reported at 292 F. 2d 144.) The district ecurt’s origi-

nal opinion (Pety App. 16-15) and its opinion on

remand (App., infra, pp. 9-10)’ are not reported.

1 While netitioners print the findings of fact and conclusions

of law after remand (Pet. App. 21-26), they omit the opinion

filed therewith.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

‘ Suly 10, 1962 (Pet. App. 38). A timely petition for

fehearing was denied on August 9, 1962 (Pet. App.

38-39), and the petition, for certiorari was filed on

November 1, 1962. The jurisdiction ofthis Court is

invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether noise and vibration caused by the au-

thorized use of a United States Air Force Base for

national defense purposes constituted a taking of

property under the Fifth Amendment, and thus gave

rise to a claim for just compensation, where the

activities complained of took place from 2,000 feet to

one and* one-half, miles from complainants’ nearest

property, and where there was no physical invasion

of that property. .

STATEMENT

In July 1959, the owners of 14° properties located

in the vicinity of Forbes Air Force Base near Topeka,

Kansas, brouyht suit under the Tucker Act seeking

recoyery of stated amounts, eacli less than $10,0Q0.

The case was tried before Senior Circurtt Judge Hux-

man, who, after hearing the evidence, dismissed the

case on the basis-of the allegations of the complaint.

On appeal, the United States moved for remand to

determine the actual facts. The remand was ordered

and the following facts found:

Forbes Air Force Base (originaHy known as To-

peka Army Air Field), a temporary World War II

training field, was deactivated after the war. In 1948,

' *

%

%

3 °

a residential subdivision in Which plaintiffs now re-

eside wi is laid out north of the base, and heuses were

built most iy in 149 and 1950, and none after Se pte ie

ber 1955. ‘This settlement, Known as Pauline, Kansas,

is bounded on the west by a heavily traveled four-bune

highway, immediatels west of whieh is the nea tine

of the Atchison, Popeka and Santa Pe Ratlroad ) Pet.

App. 2h).

After the, Norean var, the United States aequired

a tract nerth of the base, aid adjoiuiig the Pauline

addition on its eastern boundary, with a view to en-

larging it to accommodate jet arrers aft. Ao rim: hy

for that plurpose Was put dite eperation in September

1955, and a ramip and warm-up pad constructed. ‘The

parking ramp is closest te Pauline, with the warm-up

pad fred runway to the eastoof the ramp (Pet. App.

27-22). Phe western edge of the ranuy and parking

area is approximately 6500 feet« from the nearest of

| plaintiths’ homes on Lake Drive, the rani itself being

900 feet wide (Pet. App. 22). Ini 1956, maintenance

aetivity Was conducted on the raniys 38420° feet from -

plarntitfs’ property. Since: May P60), ‘this operation

has been removed te a place approximately one and

- one-half miles from plaintiffs’ property (Pet. App.

24).

=

Since September 1955, about 100 RBAT and Baz

six-engine jet aireraft have been located at the base.

Typically, the planes warm up at a point 2,000 feet,

and take off from a point 2.280 feet, from plaintiffs’

nearest property (Pet. App. 22). In general, the

government neither claims nor exercisés any right to .

fly planes over petitioners’ property, since Pauline

Yt } ;

=

about 50 percent (Pet. App. 26). ft

4

a4

lies outside the flight pattern of all aircraft operating

from the base fthough on a few occasions planes. did

fly directly over plaintiffs’ homes at low altitude)

(Pet. App. 23). The flights do, however, cause noises

and vibrations’ on petitioners’ properties, rattling

windows and dishes, drowning out conversations and

television, and interrupting sleep (Pet. App. 24).

In addition, the use of an injection system for take-

offs during the summer months occasionally causes

smoke to be blown-across the properties, leaving an

oily black deposit on houses, windows, and laundry

(Pet. App. 25). The sounds emitted by the jet oper-

ations are heard generally throughout the area sur-

rounding the base, not merely on plaintiffs’ propert*,

and the effect of the sound waves and smoke upon

the Pauline Subdivision is of the same character as

that experienced ‘in varying degrees in the ‘general

vicinity of the base. However, because of the prox-

imity of plaintiffs’ preperty to the operations, the

effects are much greater upon them than upon other

property farther removed (Pet. App. 25). The court

made specific findings as to the depreciation in value

of each property, the amount in most instances being

‘? The United States was unable to appeal from the findings

as to damage since judgment was entered in its favor. It is

our view, however, that undue emphasis was given to the alleged

undesirability of the property as a residence for some of peti-

tioners and insufficient attention paid to the objective nfarket

value test. Evidential rulings precluded proof of the fact that

proximity to jet airports enhances, rather than decreases, the

value of property for nonresidential purposes, and may have

yery little depressin#® effect éven upon residential values, as

property owners gradually become more accustomed to the new

sounds.

5

In its eriginal opinion, the distriet court had -con-

cluded that under United States v. Causby, 328 U.S

256, there must be an intrusion into the airspace over

a, plaintiff's property in order to constitute a taking.

Tt reaffirmed this view upen remand, stating that the*

“case of Richards Vv. Washington Terminal Company,

233 US. 546, is very inuch in point upon the facts”

(App., infra, p. 9).

In affirmance, the court of appe a emphasized the

distinction under the Federal Constitution Pin con-

trast to the ‘constitutions or statutes of 25. states)

between a takin and consequential damages (Pet.

App. 30-31), and concluded ‘there was no taking

absent an invasion of property. Tt also noted that

the various activities took place 3.000 feet to Ws

miles fron. the nearest property of the plaintiffs and

that Causby contained nothing indicating recovery

could be had for noise, vibration, or smoke coming

from distances of this magnitude (Pet. App. 33).

Finally, it found that the activities to which petition-

ers objected were not specifically directed against

them. or their property, did not arrogate to the gov-

ernment any of petitioners’ dominion over. their prop-

erty; and presented a situation common to all private

property surrounding the base (Pet. App. 34).

ARGUMENT

1. We agree that the jet airplane, along with other

noisy engines such as rockets, large tractor-trailers,

etc., have become a source of considerable annoyance.

But the application. of constitutional principles in

this field is, we believe, clear. The basic rule is that

“damage alone gives courts no power to require com-

q

pensation,’ United States v. Willow River Co., 324

U.S. 499, 510, arid that damages “which are the in-

cidental result of lawful governmental action, with-

out any direct invasion of private property, are

consequential; they do not constitute a taking under

the Fifth Amendment.” Nunnally v. United States,

239 F. 2d 521, 52 (CLA, 4). The fact that the dis-

turbing influence in this case is jet aircraft on gov-

ernment property, rather than practice bombs or the

host of other situations involving federal activities

which may annoy neighboring property owners, is

no’ ground for allowing recovery.’ If the result were

otherwise, the sole prerequisite to recovery would be

substantial damage, and tlie fundamental constitu-

fional distinction between taking and damage would

be obliterated. 0

2. Richards vy. Washington Terminal Co., 233 U.S.

546, is not in contlict with the decision below, as peti-

tioners suggest, but strongly supports it, as the dis-

trict court recognized (Appendix, infra, pp. 9-10).

There, plaintiff was denied recovery for annoyances

(noises, vibrations, emission of smoke and = sparks

from locomotives) incidental to the normal operation

of a railread near plaintiff's property, and experi-

enced generally by property owners in the vicinity.

Reeevery was perniutted only for those damages caused

* The lower federal courts which have passed on the question

are unanimous in rejecting claims based on noise and vibration

where there were no overflights. Moore v. United States, 185

F. Supp. 399 (N.D. Tex.) ; Pope v. United States, 173 F. Supp.

36 (N.D. Tex.): Freeman v. United States, 167 F. Supp. 541

(W.D. Okla.) : United States vy. 26.07 Acres of Land, 126 F.

Supp. 374 (E.D. N.Y.). »

?

by smoke and gases directed specifically at plaintiff's

property by an exhaust fan installed in the railroad

tunnel. Nothing comparable occurs here. Both

courts below found that the disturbing flight activitie. -

created a condition common to all properties sur-

rounding the airfield, and were not specifically di-

rected at petitioners.

United States v. Causby, 328 U.S. 256, upon which

the district court relied, is entirely consistent with

the decision below. There, this Court held that dam-

ages restilting from continuous low-altitude flights in

the airspace immediately above the landowner’s prop-

erty were not ‘‘merely consequential,’ but were ‘the

product of a direct invasion of respondents’ domain”,

and reiterated the rule that “it is the character of the

invasion, hot the amount of damage resulting from

it * * * that determines the question whether it is a

taking” (328 U.S. at 265, 266). The Court of Claims

has subsequently held that flights above the 500-foot

level would not be actionable under Causby. Matson

v. United States, 171 F. Supp. 283 (per Mr. Justice

Reed). ‘And if vertical shock waves travelling more

than 500 feet do not give rise to a direct invasion. it

can scarcely be urged that horizontal waves emanating

from a source 2,000 feet t6@14 miles from petitioners’

property would do so,

ca

; ‘

CONCLUSION

Since the decision below is_plainly correct and is

not in conflict with any other decision, thepetition for

certiorari should be denied. «

Respectfully submitted.

i _ ARCHIBALD Cox, |

é Solicitor General.

Rocer P. Marquis,

Attorney.

DECEMBER 1962.

Me

APPENDIX

OPINION OF DISPRICT Court ox REMAND

The court adopts as a part of its opinion, the

opinion it filed at the time it sustained the Govern-

ment’s motion to dismiss the complaint for failure

to state a cause #f action. Not much need be said

in addition to what was said in that opinion. The

conclusion is inescapable tu the court that the philos-

ophy of United States vy. Causby, 328 U.S. 256, is that

before there is a taking by the Government, there

must ‘be some fofm of entry upon the property of a

complainant. Noises and sound vibrations originating

outside the boundaries of plaintiffs’ property and

transmitted “across the property do not constitute a

taking. The holding of the court in the Causby

case is’ summed up in syllabus (d), as follows:

Flights of aircraft over private land which

are so low and frequent as to be a direct and

immediate interference with the enjoyment and

use of the land are as much an appropriation

of fhe use of the land as a more conventional

entry upon it,

While there was an occasional flight over plaintiffs’

property in this case, it was accidental and not as a

result of a claimed right. Plaintiffs do not rely for

recovery upon such occasional flights. They rely

entirely upon the sound waves and smoke originating

outside the confines of their property.

The case of Richards v. Washington Terminal Com-

pany, 233 U.S., 546, is very much in point upon the

facts. There, property owners whose land adjoined

a railroad line were denied recovery for damages

(9)

10 ©

resulting from the noise, vibrations, smoke and the

like, incidental to the operation of the railroad. Re-

covery there, as here, was sought on the ground that

these things constituted a taking under the power

of eminent domain enjoyed by the railroad company.

In the Causby case, the Supreme Court referred to

and apparently approved the Richards case by distin-

guishing it from the Causby case.

It is conceded that no recovery can be had because

of the tort: or nuisance, and that recovery must be had

on the sole theory that the acts complained of con-

stituted a taking of an interest in plaintiffs” property

for which compensation must be paid.

, .The court is unable to find there was such a taking.

/s/ Waturer A, Huxmay,

Judge, Assiqned,

Filed Oct. 23, 1961.

U.S. GOVERNMENT PRINT. NG OFF.CE. 1068

g